9911796707
TMI Blog2002 (4) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellants are engaged in the manufacture of MS Ingot or re-rolled products. The said goods are notified w.e.f. 1-9-97 under the provisions of Section 3A of Central Excise Act, 1944. To carry out the purposes of this amendment in the section rules have been formulated. Based on the information, annual capacity of production was determined by the Commissioner in terms of Rules 96ZO(3) and 96ZP(3) of the Central Excise Rules, 1944. A dispute arose as to whether duty was chargeable on the goods in terms of Rules 96ZO(3) and 96ZP(3) or in terms of Rules 96ZO(1) and 96ZP(1) read with Section 3A(4) of the Central Excise Act. The Commissioner was of the view that in spite the fact that the assessee had not opted for payment of duty under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st this the Counsels for the assessees plead that if a particular benefit is available as per the provisions of law the same cannot be denied to the assessees on the ground that all the assessees are claiming the same and fixation of the ACP has become a formality. It was also contended by the Counsels for the assessees that even though extending the benefit of Section 3A(4) where the actual production is less than the ACP, annual capacity of production is required to be fixed first for making the comparison. The DRs cited and relied upon the decisions of the Apex Court in the case of Venus Castings - 2000 (117) E.L.T. 273. The Counsels for the assessees submitted that the assessees never opted for Rules 96ZO(3)/96ZP(3) and as such the rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner is required to re-determine the same as provided in Section 3A(4). In the case of Supreme Steels the Apex Court ordered that excise duty may be charged on the basis of actual production. We further note that Section 3A(4) of Central Excise Act, 1944 is to the effect that where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise was required to give an opportunity to the assessee to produce evidence in support of his claim determine the actual production and re-determine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3). We further note th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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